U.S.-Guatemala Arbitration Panel Clarifies Effective Enforcement Under Labor Provisions of Free Trade Agreement

Tequila J. Brooks
  • International Labor Rights Case Law, March 2018, Brill
  • DOI: 10.1163/24056901-00401007

US loses first CAFTA-DR labor arbitration, provides guidance on effective enforcement of labor law

What is it about?

U.S. free trade agreements have included labor clauses since the 1994 NAFTA, but do they actually work? This commentary examines the first international arbitration decision in which the U.S. charged Guatemala for not effectively enforcing its labor laws under the U.S.-Central America-Dominican Republic Free Trade Agreement (CAFTA-DR). Although the U.S. lost to Guatemala, the decision provides important guidance on what must be proven to prevail in future cases and on the meaning of effective enforcement of labor law under CAFTA-DR and other U.S. free trade agreements.

Why is it important?

This commentary distills the main points of the 200-page arbitration decision, discussing each element of proof that must be made under CAFTA-DR's labor clause to demonstrate that a country has not effectively enforced its labor laws in a manner affecting trade. The commentary zeros in on the key issue of the difficulty of assessing and submitting evidence from workers and trade unions in an international trade proceeding. Critically, the commentary is accompanied by an abridged version of the arbitration decision consisting of 16 pages of the key paragraphs in the decision.

Perspectives

Tequila Brooks

This commentary places the CAFTA-DR labor arbitration case in a continuum of cases rather than focusing on the decision as a single, devastating loss that calls into question the enterprise of including and enforcing labor clauses in free trade agreements. Every important legal advocacy effort in the pursuit of social justice - whether defending early challenges to the constitutionality of minimum wage and child labor laws or challenging racial school segregation in the U.S. Supreme Court case Brown v. Board of Education - has started with missteps, misfires, and losses. The CAFTA-DR Guatemala labor arbitration decision of 2017 is no exception. Progress will not and cannot be made without the learning and tough experiences of early misfires and losses.

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http://dx.doi.org/10.1163/24056901-00401007

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